Brussels, 18/10/2012 (Agence Europe) - Italian legislation governing the employment relationship of public sector workers employed on a fixed-term basis (“stabilisation”) contravenes EU law because it does not recognise service accrued by the interested parties in their initial salaries as civil servants or take into account the periods of service previously completed by those employees for that same public authority under fixed-term contracts. In a decision made on Thursday 18 October, the European Court of Justice (joint affairs C-302/11 - C-305/11) ruled that fixed term contracts do not constitute an “objective reason” to justify the exclusion of service accrued. This decision was made in response to the Italian Council of State, which called on the ECJ to examine whether this regulation was contrary to the framework agreement on fixed term work contained within the annex to the 1999/70/EC directive.
In its ruling, the ECJ pointed out that under the terms of the framework agreement, workers on fixed term contracts should not be treated any less favourably than workers on permanent contracts just because they work for a given time period (the non-discriminatory principle), unless objective reasons justify different treatment.
In the main case, the Court states that it is for the referring court to determine whether the employees recruited by the Italian National Competition Authority and working under fixed-term contracts were in a situation comparable to that of career civil servants employed on a permanent basis. The nature of the duties performed by those employees under fixed-term employment contracts and the quality of the experience which they thereby acquired constitute criteria which make it possible to determine whether they are in a situation comparable to that of career civil servants.
The Court points out that if there is an “objective ground” justifying a difference in treatment, it must be in a particular context and accompanied by precise and specific factors, resulting from the specific nature of the tasks. The unequal treatment, “must be based on objective and transparent criteria enabling it to be ascertained whether that unequal treatment meets a genuine need and is appropriate and necessary for achieving the objective pursued”. In any event, the Court indicates that the mere fact that the fixed-term worker completed periods of service on the basis of a fixed-term contract does not constitute such an objective ground. Moreover, the Court takes the view that the Italian legislation is disproportionate in that it completely prohibits all periods of service completed under fixed-term contracts being taken into account in order to determine the length of service upon recruitment on a permanent basis and, thus, the remuneration. (FG/transl.fl)